General conditions of sale

General

These terms in their actual valid version are the basis for all present and future business transactions for supplies and services with companies, public law legal entities and public law special funds. Deviating terms of the customer which we have not expressly accepted in writing will not be binding on us, even if we do not expressly reject them.

Verbal statements given by our employees will finally come into force by our written confirmation. Individual agreements within the meaning of § 305 b BGB are not covered by aforementioned regulations.

Offers, acceptance of orders, prices

Our offers are always subject to change without notice. Goods are subject to prior sale.

Third parties may not be given access to offers, cost estimates, drawings, brochures or any other documentation. We retain copyright in these and ownership until an order is placed.

Any information regarding the business relation especially with regard to our know-how has to be treated confidentially.

Qualities, dimensions and weights are in accordance with the DIN/EN standards in force when the contract is concluded. If none are in force, they will be in accordance with trade custom, in particular the most recent version of the Incoterms. They do not represent assurances or guarantees any more than do inspection certificates, claims by manufacturers or marks such as CE and GS.

Dimensions and weights are subject to the usual deviations. "Approx." [German "Ca"] in front of indications of volume entitle us to supply 10% more or less.

Amounts supplied will be as specified in our offer / our statement of acceptance. Objections to these statements must be communicated to us in writing without delay, latest within one week after receipt, in any case prior to execution of the corresponding order.

Relating to the legal and technical admissibility of the use of our products the customer is responsible exclusively even if we have given corresponding recommendations. In case of doubt our technical explanatory leaflets and processing instructions are decisive.

Prices and Payments

Prices are net cash ex works / ex store plus freight and the costs of collecting and disposing of packaging, plus value added tax. Unexpected additional expenditure occasioned in the execution of the delivery and for which no surcharges have been agreed shall be borne by the customer unless we are responsible for them.

Payments are due immediately without deduction in euros (EUR) unless another currency and/or different terms of payment have been agreed upon. Agreed discount will be allowed when all previous invoices except ones to which the customer is justifiably objecting have been settled. Discount will be calculated on the basis of the net invoice total after the deduction of other allowances, freight etc. All payments become effective when they are credited to our bank account.

The customer may not exercise any withholding rights on the basis of other transactions, including ones which form part of the current business relationship. No offsetting by the customer is permissible unless the counterclaim is undisputed.

The customer will fall into arrears at the latest 14 days after delivery or on his failure to meet a payment deadline later than this. In such cases we will charge interest at 8% above the base rate. The right to enforce a claim for any greater loss is reserved.

If it becomes apparent after the conclusion of the contract that our claim to payment is in jeopardy due to the customer's inability to pay, we will be entitled to enforce the rights conferred by § 321 German Civil Code with respect to all other outstanding payments arising out of the business relationship with the customer. If the customer doesn’t achieve the performance or doesn’t give security within reasonable time, we will then also be entitled to require the immediate payment of all unexpired claims arising out of the current business relationship.

In the cases specified in No. 3.4 and No. 3.5 we may take back goods subject to a reservation of ownership (No. 5.3), revoke the direct debit authorisation (No. 5.5) and require advance payment for any outstanding deliveries.

The customer may avoid the consequences specified in No. 3.5 and No. 3.6 by providing security equivalent to our claim to payment in jeopardy.

Otherwise this does not affect statutory provisions relating to arrears in payment.

Performance

We will deliver at the customer's risk ex works / ex store, depending on the transport route and method selected and the carrier used. Delivery free address customer means delivery without unloading and under condition of a road convenient to heavy trucks. The customer must unload goods properly without delay. Waiting time will be charged to the customer.

Should it, through no fault of ours, become impossible or substantially more difficult to transport goods by the intended route or to the intended destination within the intended time, we shall be entitled to deliver by a different route or to a different destination at the expense of the customer, if this is reasonable for the customer, if this is for the customer reasonable.

Insurance against damage or loss in transit will only be taken out at the express request of the customer and at the latter’s expense. Damage/loss reports must be submitted immediately on the receipt of goods and the nature and scope of damage/loss notified immediately in writing.

Goods ready for dispatch must be called off immediately. If this is not done we shall be entitled at our discretion to either dispatch them at the expense and risk of the customer or to store them as we see fit and charge for them immediately.

Part deliveries have to be accepted unless the customer proves that it is unreasonable to expect him to do so. We are entitled to supply more or less to the extent usual in the trade.

Where regular deliveries are agreed the monthly volumes called for from us should be approximately equal.

If the contract volume is exceeded by individual customer calls, we will be entitled, but not under any obligation, to supply the surplus. We may invoice for the surplus at the prices in force at the time of the call or the delivery.

The fulfilment of the contract and adherence to delivery and performance deadlines are conditional on: the punctual and correct delivery of supplies to us by our suppliers, except where failure to deliver or delay in delivery is our fault, the correct and punctual meeting by the customer of his obligations to co-operate, in particular by supplying all the information, documentation and approvals necessary for performance, the correct and punctual completion of the work required from the customer or third parties necessary for our performance, in particular including the provision of suitable unloading equipment.

Delivery dates or times only are binding for us after having been confirmed in writing before. Periods allowed for the delivery of supplies/services will be extended by the period for which the customer fails to meet his obligations to us and in the case of an industrial dispute, for the duration of the interruption to operations caused by this. The same applies to deadlines for such delivery.

Reservation of title

All goods supplied will remain our property ("reserved goods") until the satisfaction of all of our claims arising out of the business relationship, including in particular claims on balance of current account. This also applies to future and conditional claims, e.g. based on acceptor's bills, or in the case of cheque/bill terms until the redemption of the bill by the customer, and also where payments are made on specifically designated claims.

The value of reserved goods is the net invoice amount for the goods supplied by us plus a security premium of 50% (22% value deduction, 4% pursuant to § 171 I German Insolvency Rules, 5% pursuant to § 171 II German Insolvency Rules and 19% turnover tax) which will not be applied to the extent of any opposing third-party rights.

This balance reservation will lapse with final effect on the settlement of all claims still outstanding and covered by this balance reservation at the time of payment.

Any processing of reserved goods will be done on our behalf as manufacturer as specified in § 950 German Civil Code, without placing us under any obligation. Such processed goods will be regarded as reserved goods within the meaning of No. 5.1. If reserved goods are processed, combined or mixed by the customer with other goods we will acquire joint ownership of the new item proportional to the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. In case our property rights are extinguished by combination or mixing, the customer assigns to us with immediate effect his ownership rights in the new item up to the value of the reserved goods and undertakes to take care of them for us free of charge. Our joint ownership rights will be regarded as reserved goods within the meaning of No. 5.1.

The customer may only dispose of reserved goods in the normal course of business subject to his usual standard terms and conditions and as long as none of the cases specified in No. 3.5 and 3.6 apply. Such disposal is conditional on the passing to us of claims arising out of it in accordance with No. 5.4 to No. 5.6. Otherwise the customer is not entitled to dispose of reserved goods.

Reserved goods must be stored separately from other goods and/or marked as our property. We are entitled to take possession of the goods at the customer's expense and to enter the land or the premises of the customer for this purpose. The taking back of goods does not represent withdrawal from the contract. This does not affect the application of the German Insolvency Rules.

The customer's claims arising out of the further disposal of reserved goods, including by installation as an integral element of a piece of land, are hereby assigned to us with immediate effect together with all securities. They will serve as security to the same extent as the reserved goods. If reserved goods are disposed of by the customer together with other goods not sold by us, the claim arising out of the further disposal is hereby assigned to us up to the value of the reserved goods.

On the disposal of goods of which we share the ownership as specified in No. 5.2, a portion corresponding to our share of ownership will be assigned to us.

The customer is entitled to enforce claims arising out of further disposal unless we revoke the direct debit authority in the cases specified in No. 3.4 and 3.5.

If required by us he is under an obligation, if we do not do this ourselves to inform his purchaser immediately of the assignment, to us and to supply us with the information and documents necessary for enforcement. In no case will the customer be entitled to any further assignment of claims. This also applies to factoring transactions except for true factoring assignments which are notified to us and where the proceeds of factoring exceed the value of our secured claim. Our claim will become due for payment immediately on the crediting of the proceeds of factoring. If the customer agreed to a prohibition of assignment, he authorises us hereby to enforce his claims.

The customer must inform us without delay of any seizure or other action by third parties affecting reserved goods. The customer must bear all costs which have to be incurred in order to regain possession of reserved goods, to the extent that the intervention succeeded and the execution against the debtor has been without success.

If the value of existing securities, including reserved goods within the meaning of No. 5.4, exceeds the total value of the claims secured by more than 50%, we must if required by the customer release our choice of securities up to the relevant amount.

Liability for material defects

Obvious material defects must be notified in writing without delay and at the latest within seven days of delivery. Entrepreneurs, public law legal entities and public law special funds must also give written notice of material defects which are not obvious but capable of discovery by the type of inspection reasonably to be expected without delay following discovery but at the latest before the expiry of the agreed or legally prescribed period of limitation; otherwise § 377 German Commercial Code is not affected.

If an acceptance of goods which either was agreed or is legally required fails to take place for reasons for which we are not responsible, claims based on material defects will no longer be enforceable.

If material defects do not become apparent until processing begins, complaints will only be considered if the processing of the defective items is stopped immediately.

If the customer fails to give us an immediate opportunity to inspect the defect, or in particular if he does not make the goods concerned or samples thereof available on request, any claims based on material defects will lapse.

If a justified complaint is made in time we may initially choose either to rectify the defect or to supply a perfect item (remedy).

If an attempt to remedy fails or if remedy is refused, the customer may reduce the purchase price or withdraw from the contract after he has set a reasonable deadline and this has expired without result, as long as the defect in question is not insignificant and the goods have not already been sold, processed or transformed.

The customer is entitled to claim compensation for losses as provided by No. 7.

We will only bear costs associated with remedy where they are reasonable in the individual case, in particular in proportion to the remuneration for the goods/services in question.

We will not reimburse the cost of transporting the goods to a location other than the place of performance unless this corresponds to their contractual use.

The customer's claims on the basis of material defects will expire by limitation one year after delivery to the customer, including cases where goods are used for construction work, unless this type of use was agreed in writing.

Where a remedy is provided, the period of limitation will not restart.

The above provisions will not affect claims of the customer based on deliberate or grossly negligent breaches of obligation on our part, on a malicious failure to disclose material defects, on a guarantee provided by us or on recourse rights of the customer conferred by § 478 German Civil Code, as long as these do not go beyond the material defect claims provided by law.

The customer is obliged as stipulated by law to undertake all measures to minimize any damage.

Other liability

We will only be liable for breaches of contractual and non-contractual obligation, including ones by our executive staff and other assistants, in cases of deliberately caused loss and gross negligence and limited to the losses foreseeable at the time when the contract was concluded and typical of that type of contract.

The provisions of No. 6.5 apply as appropriate to expiry by limitation.

These restrictions will not apply in the case of culpable breaches of substantial contractual obligations where the achievement of the purpose of the contract is jeopardised, where the German Product Liability Act imposes obligatory liability or in cases of damage to life, limb or health, and they will not apply even in these cases if and to the extent that we maliciously fail to disclose defects or have given a guarantee.

This does not affect the rules governing the burden of proof.

Jurisdiction, legal venue

All transactions are subject to German law, including foreign business. The application of the UN Convention Relating to a Uniform Law on the International Sale of Goods (CISG) is hereby excluded.

If the conditions imposed by § 38 German Code of Civil Procedure for an agreement as to the legal venue are satisfied, the legal venue for all claims of the contracting parties will be Lübeck.

We may, however, require the settlement of disputes by amicable arbitration.